dismissed EB-1C Case: Timber Industry

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
'PUBLIC COpy 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
DATE: MAY 2 5 2011 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) ofthe Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a California corporation that seeks to employ the beneficiary as its general manager. 
Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant 
to section 203(b)(1 )(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1 )(C), as a 
multinational executive or manager. 
The director denied the petition based on two grounds of ineligibility: 1) the petitioner failed to establish that 
the beneficiary was employed abroad in a qualifying managerial or executive capacity; and 2) the petitioner 
failed to establish that the beneficiary would be employed in the United States in a qualifying managerial or 
executive capacity. 
On appeal, counsel disputes the director's decision and contends that the director overlooked large portions of 
the beneficiary'S job descriptions which the petitioner had previously provided in response to the request for 
additional evidence (RFE). 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available ... to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(1)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The two primary issues in this proceeding call for an analysis of the beneficiary'S job duties. Specifically, the 
AAO will examine the record to determine whether the beneficiary was employed abroad and whether he 
would be employed in the United States in a qualifying managerial or executive capacity. 
Page 3 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization In which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) ofthe Act, 8 U.S.c. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization In which the 
employee primarily--
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner submitted a letter from counsel dated May 9,2007. Counsel did 
not provide a description of the beneficiary's employment abroad other than to state that the beneficiary was 
employed as general manager from June 2000 to 2004. Counsel provided the following description of the 
beneficiary's proposed employment with the U.S. entity: 
In charge of the day-to-day operations of the company. Formulate and enforce company 
policies for sales and purchasing, operational system, and accounting payable, etc. Set up 
company business goals and plans in order to improve sales performance. Responsible for 
Page 4 
recruitment, training, supervising employees in each department and provided training for the 
various products. Responsible for directing the sales department such as making decisions on 
major sales contracts, setting goals for promotion activities, directing and communicating 
with chief of every department to work with each others in order to meet the sales goals. 
Accomplish industry trend research and analysis as well as consumer research studies to 
search for possible expansion and developmental direction for the company. Exercise 
discretionary authority over company's financial matters such as budget, operational cost, 
fund management, etc. Review company's expansion progress and financial situation on a 
regular basis. 
On December 2, 2008, the director issued an RFE in which the petitioner was instructed to provide detailed 
descriptions of the beneficiary's employment abroad and his proposed employment with the U.S. entity. The 
director asked the petitioner to provide a percentage breakdown of the specific job duties the beneficiary 
performed abroad and those he would perform in the proposed position with the U.S. entity. The petitioner 
was also asked to provide both entities' organizational charts. 
In response, counsel for the petitioner provided a statement dated February 12, 2009, which included the 
following description ofthe beneficiary's employment abroad in his position as general manager: 
Responsible for doing research on quality and cost of different woods in various timberlands 
in Brazil by visiting the sites, by exchanging information with professional[s] in [the] timber 
industry, and by collecting data online. Search for economic and market trends to adjust the 
plan[ s] and goal[ s] for company development for short[ -]term and long[ -]term. Search and 
look for more sources of export for planning future development. (20% oftime) 
Review custom [ s] documents for exporting timber to China. Keep abreast of new regulations 
in regard to [the] timber industry and exportation of timber. (10% of time) 
Direct timber purchase[ s]. [The beneficiary was r ]esponsible for quality control of the wood 
and design[ing] the quality assurance process based on different kind of wood from 
purchasing to exporting to China. (30% oftime) 
Review accounting journals and tax documents regularly to ensure the company is financially 
healthy. Check with current financial performance and the conclusion of past periods and 
years to make and adjust [the] company['s] developing direction and [the] executed steps. 
(10% of time) 
Oversee the inventory and ensure that the delivery is within schedule. (10% of time) 
Responsible for public relation[s] of the company and improvement of [the] company's 
image. Participate in trade show[s] on behalf of the company. Represent the company to get 
involved in cultural festivals and to donate wood for churches and schools construction. (5% 
of time) 
Establish procedure of working system and company policy. Employ qualified staffs [sic] for 
each position and train them with correct concept of doing business and wood knowledge. 
Page 5 
Introduce employees to new wood suppliers and training them to be able to work with the 
new suppliers. Enable the employees to work safely. Have routine meeting[s] with staffs 
[sic] for working projects, plans, and business strategy. (10% of time) 
Strengthen the efficiency of performance of working team by consistently updating 
computerized system for high performance. (5% of time) 
The petitioner also provided the foreign entity's organizational chart depicting the beneficiary at the top of the 
hierarchy with a purchaser, an accountant, a sales person, a customs documentation specialist, and a driver as 
his direct subordinates. The remaining employee at the bottom tier of the organizational hierarchy was a 
purchasing assistant who was depicted as the purchaser's subordinate. 
Counsel provided the following description ofthe beneficiary's proposed employment: 
Oversee wood flooring sales orders processing. Responsible [for] communicat[ing with] 
Huzhou Yushun Wood in China regarding the delivery and quality of wood flooring products 
and [with] Exportadora Amazonia in Brazil for wood materials for flooring products. (20% 
of time.) 
Keep track of customer's satisfaction after sales and [make suggestions to] the companies in 
Brazil and China [on] how to improve products. Make recommendation[ s] to company staff 
of [sic] how to strengthen [the] quality of customer services. Communicate with each 
department to work with each others [sic] in order to meet the sales goals[.] (20% of time) 
Represent [the] U.S. company to [sic] participate in trade shows. Review rulers] of samples 
for each trade show. Responsible to [sic] follow up with and provide more product 
information to potential customers. (15% oftime) 
Review financial and tax documents regularly to ensure the company is financially healthy. 
Check with current financial performance and the conclusion of past periods and years to 
make and adjust [the] company['s] developing direction and executed steps. (10% of time) 
Set up company business goals and plans in order to improve sales performance regularly. 
(5% of time) 
Participate in conference[ s] for wood flooring industry and keep abreast of new wood 
flooring materials and products. Search for new wood flooring products and materials .... 
Analyze the possibilities to add product lines for these new wood flooring products. 
Recommend updated manufacturing methods and materials used to Huzhou Yushun Wood in 
China. Accomplish industry trend research and analysis as well as consumer research studies 
to search for possible expansion and developmental direction for the company in [the] wood 
flooring industry. (15% of time) 
Responsible for recruitment, training, supervising employees in each department and teach 
them knowledge of the various wood flooring products and the most updated knowledge of 
new wood flooring products and materials. Introduce employees to new customers and train 
them to be able working [sic] with new customers. Enable employees to work safely in the 
company. (10% of time) 
Keep updating our computerized working programs for high performance. (5% of time) 
The organizational chart provided for the U.S. entity shows that the petitioner's staffing and organizational 
hierarchy are similar to the foreign entity in that the beneficiary is depicted at the top of a hierarchy that is 
comprised of various subordinates, including a chief financial officer, a driver, a warehouse employee, a 
logistics specialist, a sales person, a customs documentation specialist, and an office administrator. 
In a decision dated May 21, 2009, the director denied the petition. The director briefly summarized the job 
descriptions provided by counsel in the response to the RFE and found that the petitioner failed to specify the 
beneficiary's actual day-to-day tasks in either position. The director further stated that the petitioner failed to 
establish that the beneficiary's employment, both abroad and in the U.S., was and would be primarily 
comprised of tasks within a qualifying managerial or executive capacity. 
On appeal, counsel asserts that the director's decision was erroneous, basing his argument primarily on the 
fact that the director did not restate the job descriptions provided in the RFE response in their entirety. 
Counsel contends that restating the job descriptions only in part is indicative of the director's failure to 
consider the job descriptions in their original form. Lastly, counsel argues that the job descriptions offered in 
response to the RFE contained sufficiently detailed information about the beneficiary's past and proposed job 
duties and further asserts that there are no regulations that expressly require the petitioner to provide a 
detailed description of the beneficiary's daily job duties. 
The AAO finds that counsel's arguments are not persuasive and fail to overcome the grounds for denial. 
Pirst, there is no statute, regulation, or precedent decision compelling the director to repeat, verbatim, any of 
the information provided by the petitioner, whether that information pertains to the beneficiary'S job duties or 
some other fact that relates to the petitioner's statutory eligibility. Contrary to counsel's assertion, it is within 
the director's full discretionary authority to compose an adverse decision with whatever information he or she 
deems necessary in order to effectively convey the basis for denial. Here, there is no question that the 
director did just that, despite the fact that he chose not to restate the provided job descriptions in their entirety. 
Moreover, the fact that the original job descriptions were not repeated is not an accurate indicator of 
negligence on the director's part in failing to consider all relevant information. 
With regard to counsel's assertion that a list of the beneficiary's specific job duties is not expressly required by 
regulation, 8 C.P.R. § 103.2(b)(8)(iii) provides the director with broad discretionary authority to request 
additional evidence to establish the petitioner's eligibility (or lack thereof) even when the petitioner has 
submitted all initial evidence. In fact, 8 C.P.R. § 103.2(b)(14) states that the petitioner's failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
Moreover, with regard to the beneficiary'S proposed employment, the regulation at 8 C.P.R. § 204.5(j)(5) 
expressly requires the petitioner to provide a written job offer that "clearly describer s] the duties to be 
performed by the alien." 
In light of the above, the AAO finds that the director's focus on the job descriptions offered by the petitioner 
was justified and counsel's failure to comply with the specific terms of the request was properly noted as a 
Page 7 
contributing factor to the adverse decision. In its de novo review of the job descriptions, the AAO also finds 
that the information provided by counsel was not sufficiently detailed. Despite the director's specific request 
that the petitioner provide a list of the beneficiary's job duties and assign a percentage of time to each 
individual job duty, counsel provided job descriptions that lumped various duties and responsibilities 
together, thus failing to assign time constraints to individual tasks. This separation of tasks is particularly 
critical when a job description is comprised of a mixture of both qualifying and non-qualifying tasks. As it is 
the petitioner's burden to establish that the beneficiary's time abroad as well as in his proposed position with 
the U.S. entity was and would be, respectively, allocated primarily to qualifying tasks, the deficient format in 
which the beneficiary's job descriptions were provided precludes the AAO from being able to determine just 
how much of the beneficiary's time in each position is attributed to qualifying tasks and how much of his time 
is attributed to the non-qualifying operational tasks that are necessary to produce a product or to provide 
services. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology International, 19 I&N 
Dec. 593,604 (Comm. 1988). While the AAO acknowledges that no beneficiary is required to allocate 100% 
of his time to managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks 
are only incidental to the beneficiary's qualifying employment. 
In the present matter, the record includes descriptions of the beneficiary's foreign and proposed positions that 
include numerous non-qualifying tasks. With regard to the beneficiary's foreign employment, counsel stated 
that the beneficiary conducted research on various woods and industry trends, kept control over the company's 
inventory, trained staff, some of whom do not appear to have been managerial or professional employees, and 
updated the company's computer system. These are indicative of non-qualifying operational job duties whose 
specific time allocations were not specified. Additionally, the AAO notes that while the petitioner indicated 
that the beneficiary directed the purchase of timber and was responsible for quality control, no specific tasks 
were cited to explain how the beneficiary met these key responsibilities, which together consumed 30% of the 
beneficiary's time. 
With regard to the description of the beneficiary's proposed employment, the job description is overly broad 
with vague job responsibilities and cites various non-qualifying job duties without assigning time constraints 
to indicate what portion of the beneficiary's time would be specifically attributed to performing the 
petitioner's daily operational tasks such as communicating with companies regarding product delivery, 
tracking customer satisfaction and addressing issues related to customer service, attending trade shows to 
showcase the company's products and services, recruiting and training non-managerial and non-professional 
employees, and updating the company's computerized programs. 
As indicated above, in examining the executive or managerial capacity of the beneficiary, USCIS will look 
first to the petitioner's description of the job duties. See 8 C.F.R. § 204.50)(5). Published case law also 
supports the significance of a detailed job description, holding that the actual duties themselves reveal the true 
nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 
F.2d 41 (2d. Cir. 1990). The information provided in the present matter fails to establish that the primary 
portion of the beneficiary's time, either abroad or in his proposed position with the U.S. entity, has been or 
would be allocated primarily to tasks of a qualifying nature. Despite the beneficiary's top rank within each 
entity's organizational hierarchy, the record does not establish that the beneficiary was and would be relieved 
from having to spend the primary portion of his time carrying out non-qualifying tasks. As noted earlier, an 
employee who "primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and 
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see 
also Matter of Church Scientology International, 19 r&N Dec. at 604. Based on the evidence furnished, the 
AAO cannot conclude that the beneficiary has been or will be employed primarily in a qualifying managerial 
or executive capacity. For these reasons, the petition may not be approved. 
As a final note, service records show the petitioner's previously approved L-l employment of the beneficiary. 
Each nonimmigrant and immigrant petition is a separate record of proceeding with a separate burden of proof; 
each petition must stand on its own individual merits. uscrs is not required to assume the burden of 
searching through previously provided evidence submitted in support of other petitions to determine the 
approvability of the petition at hand in the present matter. The prior nonimmigrant approvals do not preclude 
uscrs from denying an extension petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556,2004 
WL 1240482 (5th Cir. 2004). Similarly, the approval of a nonimmigrant petition in no way guarantees that 
uscrs will approve an immigrant petition filed on behalf of the same beneficiary. uscrs denies many r-140 
immigrant petitions after approving prior nonimmigrant r-129 L-l petitions. See, e.g., Q Data Consulting, 
Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin 
Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
Furthermore, if a previous nonimmigrant petition was approved based on the same unsupported assertions 
that are contained in the current record, the approval would constitute material and gross error on the part of 
the director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 r&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that uscrs 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.